"Crossing a Police Line" Appeal

Dec. 30, 2004 Update: The Court of Appeals issued its opinion in Bloch v. DC today, overturning my conviction! The opinion can be downloaded from http://www.dcappeals.gov/dccourts/appeals/pdf/03-CT-680.PDF. The Washington Post ran a story on the case the next day on page B2 in the print edition and online at http://www.washingtonpost.com/wp-dyn/articles/A37904-2004Dec30.html

Citation for this case: Bloch v. District of Columbia, 863 A.2d 845 (D.C., Dec 30, 2004)

In the written opinion, the Court of Appeals reminded prosecutors that it is their burden to prove that a speech-neutral law was not applied with the purpose of infringing constitutionally protected speech. once the defense raises a legitimate free speech challenge, if the government doesn't rebut the challenge with sufficient admissable evidence beyond a reasonable doubt, then the defendants must be acquitted. In our case, the prosecution presented only heresay evidence from two police officers on the scene, regarding the purpose of the "police line," so the Court overturned my conviction.

I had been hoping for a broader opinion that would have curtailed the use of this regulation whenever a protest remained peaceful. The regulation still has the problem of lack of prior notice. Police don't have to tell the public their plans in advance, so restrictions on speech can't be challenged until after they are imposed. The police don't have to provide a speech-neutral justification until trial, which gives them plenty of time to make one up. Another thing the Court didn't address is whether the application of the police line was narrowly tailored and burdened no more speech than necessary. (The Court didn't need to address this issue, once it found that there was insufficient evidence of the justification for the police line.)

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In light of the Court of Appeal's decision, some of my codefendants (who hadn't joined me in the appeal) filed a motion to have their convictions vacated, and the trial court granted their motion and vacated all of the convictions.

Nov. 22, 2004 Update: The oral argument has been scheduled to be heard on Dec 2 at 2pm. Today the ACLU and the United States filed their amici briefs. I've uploaded them here: ACLU amicus brief and US amicus brief

Oct. 13-14, 2004 Update: The oral argument was scheduled to be heard on Oct 14. On Oct 13, the Court removed the case from the summary calendar, rescheduling the matter for argument in a special sitting. On Oct 14, the Court issued an order inviting the United States and the ACLU to file briefs, within 30 days, as amici curiae. The oral argument will be rescheduled for December or early January.

My reply brief was submitted on June 21, 2004. Click here.

Government's brief finally submitted on April. 14, 2004. Click here.

Brief submitted on Dec. 23, 2003. Click here.

I am challenging an anti-war conviction under a D.C. regulation that is regularly used in the enforcement of free speech zones in D.C. The outcome of my case should seriously affect the rights of protesters in D.C. If I lose, the police will be able to continue to justify exclusions zones under the "Police Line" regulation. If I win, the police will have to find another justification or stop using exclusion zones altogether.

Arrest and appeal details

On Wednesday, March 19, 2003, I joined a peaceful anti-war protest in Lafayette Square across Pennsylvania Avenue from the White House. Automobile traffic has been blocked from that block of Pennsylvania Avenue for several years, although the street and the sidewalk on the other side are both normally open to pedestrians. But sometime well before protestors had arrived (6 AM according to testimony), the Park Police had blocked off that section of Pennsylvania Avenue with 3-foot-high "bicycle fencing," keeping protesters and others further away from the White House -- although no warning was ever given and the fencing was not marked in any way as a "police line." I was part of a group of about 20 protesters who decided to challenge the restriction and climbed or stepped over the fencing to engage in a peaceful prayer vigil. We were arrested, held and processed for about 9 hours, and charged with violating the DC "Police Line" regulation, 24 DCMR 2100.3 (a "violation", not even a misdemeanor), which prohibits entry into an "emergency area or zone." Several of us were tried by a judge on June 4, 2003. The US Park Police claimed that they had set up an "emergency zone" to provide a "staging area" for police operations. All but one of us on trial that day were convicted, with a minimal sentence of probation and a mandatory $50 payment.

Despite the light sentence I decided that an appeal was worthwhile as a precedent for future protests. The appeal process is described in the D.C. Court of Appeals' Guide to the Appellate Process. On Nov. 4th, I received the missing portion of trial transcript, and on Nov. 13th the Court of Appeals issued a briefing order giving me 40 days to file a brief. I filed my brief on Dec. 23rd. The government filed its brief months later, and I filed my reply in June.

The case was put on the summary calendar for Octoberer 14th. When a case is put on the summary calendar, it's usually because the court doesn't think there are difficult or important issues. I requested an oral argument, which was scheduled for 2pm October 14th. On October 13th in the morning the clerk's office called me to tell me that the oral argument was postponed. I found out a couple of days later that the court issued an order requesting amicus briefs from the ACLU and the United States.

The primary issue on appeal is over the proper interpretation of the police line regulation. Does the regulation violate the First Amendment if allows the police to impose a prior restraint on a protest that is peaceful and not imminently violent or destructive? There is a case from 1977, Washington Mobilization Committee v. Cullinane, 184 U.S. App. D.C. 215; 566 F.2d 107 (1977), which upholds the same statute I am challenging. However, the Washington Mobilization ruling only applies to ongoing (not future) "demonstrations which had become obstructive or had been infected with actual or imminent violence, and therefore had lost their protected quality as expression under the First Amendment." Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990). The Leonardson court invalidated the prior-restraint part of an East Lansing ordinance based on the DC police line regulation.

If the Court of Appeals decides that the police line regulation can constitutionally be used as a prior restraint, then the application of the regulation must be circumscribed by a line of more recent Supreme Court decisions (such as Madsen v. Women's Health Ctr. (1994)) which hold that content-neutral injunctions must be narrowly tailored so they "burden no more speech than necessary to serve a significant government interest."

Here are links to materials related to the anti-war protest and my appeal:

Available here:

• Brief submitted on Dec. 23, 2003. This version of the brief has links to all cases and other sources.
  Click here for other formats

• Government's brief submitted on April. 14, 2004.

• DCMR 24-2100 (the D.C. Municipal Regulation I was convicted of violating, also called the "police line regulation")
• Browse the trial transcript on-line.
• Trial transcript as one big pdf file. -- 7 MB download (139 pages). Right click to save.
  (Note: Transcript was originally missing the government's opening statement and direct testimony of first witness.)
• Browse the supplemental trial transcript on-line. This portion of the transcript should have been included at page 23, line 21.
• Supplemental transcript -- 1.7 MB download (36 pages). Right click to save.

• Washington Mobilization Committee v. Cullinane, 184 U.S. App. D.C. 215; 566 F.2d 107 (1977). (interpreting the "police line" statute at issue)
• Leonardson v. City of East Lansing, 896 F.2d 190 (1990). (finding that a statute modelled after the DC "police line" statute was unconstitutionally vague and overbroad)

• Pictures of the protest on March 19.

From www.dcappeals.gov:

• D.C. Court of Appeals information (rules, calendar, opinions, etc.)
  • D.C. Court of Appeals -- Pro Se guides

U.S. Supreme Court protest cases (from FindLaw):

• Schneider v. New Jersey, 308 U.S. 147 (1939) (handbills and pamphlets)
• Tinker v. Des Moines School District, 393 U.S. 503 (1969) (students wearing black armbands in schools)
• Police Dept of Chicago v. Mosley, 408 U.S. 92 (1972) (150 feet of schools)
• Carey v. Brown, 447 U.S. 455 (1980) (residences)
• US v. Grace 1983 (SCt sidewalk)
• Perry EA v. Perry LEA (1983) (interschool mail)
• Frisby v. Schultz (1988) (residences)
• Boos v. Barry 1988 (Embassy)
• Madsen v. Women's Health Ctr. (1994) (anti-abortion protesters)
• Schenck v. Pro Choice (1997) (anti-abortion protesters)
• Thomas v. Chicago Park District (2002) (permit requirements)